On remand from the Supreme Court, a panel of Eleventh Circuit judges has determined that a Florida conviction prohibiting “willfully or by culpable negligence neglect[ing] a child without causing great bodily harm, permanent disability, or permanent disfigurement to the child.” The three judges - each issuing their own opinion - agreed on little other than that the appeal should be denied.
The first judge believed that the panel remained bound by its prior decision in Pierre v. Attorney General, because when “the Supreme Court said it meant to preserve the ‘holdings’ of Chevron-era cases, it was referring not, as Bastias seems to suggest, only to a court’s case-specific application of a judicially approved agency interpretation to a particular set of facts, but rather, and more broadly, to that court’s antecedent determination that the agency’s reading of the governing statute was ‘lawful.’” Nonetheless, the judge favored rehearing this case en banc, for two reasons. “First, the Board’s definition of ‘crime of child abuse,’ which we approved in Pierre, is exceedingly broad—it arguably sweeps in all manner of conduct that might not square with the ordinary understanding of that phrase. At the very least, I think that Bastias has presented substantial arguments that the Board’s reading of § 1227(a)(2)(E)(i) isn’t the best one. Which leads me to the second, and more fundamental, reason that I favor en banc rehearing: It would permit the full Court to carefully consider and decide (1) how Loper Bright’s recognition of “statutory stare decisis” principles interacts—if at all—with our own prior-panel-precedent rule, (2) how we ought to deal with Chevron-era precedents on a goingforward basis, and (3) whether (depending on the answers to those questions) we should continue to consider ourselves bound by Pierre.”
The second judge concluded that they were not bound by our decision in Pierre, but rather were required to analyze de novo the basic substantive question at issue -- whether Bastias’s state crime conviction for child neglect qualifies as a crime under Section 237(a)(2)(E)(i) of the INA. “Pierre was tasked with matching the federal crime of child abuse in the INA with a different state crime -- battery of a child involving bodily fluids. As I see it, nothing in its holding, nothing in its reasoning, and nothing necessary to reaching its holding answers the basic question we face today.” Turning to the question of what caselaw survives the demise of Chevron, the judge indicated that “[t]o the extent, then, that a Chevron-era decision found an agency’s definition to be reasonable, and to the extent that finding was necessary to resolve the case, that finding is part of the holding and remains good law.” As to the extend of deportable offenses under the statute, the opinion noted that “although a definition of a ‘crime of child abuse’ might encompass the crime of child neglect and more, we have no occasion to make that comparison because in this case, we find the same words enumerating the same crime -- the crime of child neglect -- on both sides of the ledger.” “In short, the generic federal crime of child neglect requires a mens rea of recklessness and conduct creating a risk of harm to a child, which matches the mens rea and conduct needed for the “least culpable conduct” criminalized under Bastias’s Florida statute of conviction.”
The third judge concluded that “no matter how we might classify ‘culpable negligence’ within the traditional hierarchy of culpable mental states, we must conclude that as used in Florida law, culpable negligence captures a category of conduct that is so egregious as to raise a presumption of conscious indifference, which rises to a level of seriousness matching those acts of abuse, neglect, and abandonment Congress meant to render deportable in 1996.” “Having established that the generic federal offense of child abuse is not confined to injurious conduct, embraces culpably negligent acts, and may extend to those who are not parents nor guardians of the victim, it is a fairly straightforward matter to conclude Florida Statute § 827.03(2) is a categorical fit. Under Florida Statute § 827.03(2), the least culpable conduct criminalizes ‘neglect’ by a caregiver, taken either willfully or with culpable negligence—even if said neglect does not result in injury.”
The full text of Bastias v. Attorney General can be found here: https://media.ca11.uscourts.gov/opinions/pub/files/202111416.rem.pdf